Martinez-Catala, In re

• Citation: 129 F.3d 213
• Decision Date: 12 September 1997
• Docket Number: MARTINEZ-CATALA,No. 97-1396,97-1396
• Parties: In re Marisol, et al., Petitioners. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 213

129 F.3d 213

In re Marisol MARTINEZ-CATALA, et al., Petitioners.

No. 97-1396.

United States Court of Appeals,

First Circuit.

Heard Sept. 12, 1997.

Decided Nov. 12, 1997.

Carlos Del Valle Cruz, Hato Rey, PR, for petitioners.

Arlene De La Matta, Carolina, PR, with whom Jose R. Gaztambide was on memorandum in support of opposition to application for writ of mandamus and addendum for respondents Honorable Maria D. Guzman Cardona, et al.

Before BOUDIN and LYNCH, Circuit Judges, and KEETON, ^* District Judge.

BOUDIN, Circuit Judge.

This case comes to us on petition for writ of mandamus directing the district judge to recuse himself in this case. The district judge denied the motion to recuse without an evidentiary hearing or any detailed submission by the opposing parties. Thus, the raw facts set forth below, and assumed to be true for purposes of this opinion, are largely drawn from the petition for mandamus and related filings by petitioners.

I. BACKGROUND

After the 1992 municipal elections in Florida, Puerto Rico, the candidate for mayor of Florida affiliated with the New Progressive Party unseated the incumbent mayor who was affiliated with the Popular Democratic Party. According to the complaint later filed by petitioners, who are plaintiffs in the district court, all 14 of them were dismissed or demoted in early January 1993. Some of the plaintiffs had served as assistants to the mayor and others had been employees of Florida's elder community center.

The suit was brought as a civil rights action under 42 U.S.C. § 1983. Plaintiffs charged that their firing violated their constitutional free speech rights under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). These cases limit, although they do not wholly eliminate, the ability of a new administration to dismiss or demote employees of the old administration on account of party affiliation. Plaintiffs sought damages and reinstatement.

In November 1995, a motion for summary judgment was filed on behalf of defendants, who included the new mayor, the municipality and others. The summary judgment motion urged that the former mayoral assistants had confidential positions that excepted them from the limit on political firings and also asserted that in other cases, the assistants had been hired illegally. Defendants said that the former workers at the elder community center had been discharged due to lack of funds.

On June 13, 1996, in an effort to reach a settlement, the district judge met in chambers with counsel from both sides, with the defendant mayor, and with Florida's interim director of human resources. Then the judge, apparently without objection, met separately with both sides. Plaintiffs' counsel was Carlos Del Valle Cruz; defense counsel included Jose Gaztambide, who at some earlier time had served as a law clerk to the district judge.

Following their separate meetings with the judge, counsel for both sides met privately to discuss settlement. Del Valle later filed an unsworn statement, made under penalty of perjury, describing his meeting with Gaztambide and with Luis Plaza, another defense attorney. Crucial language from the unsworn statement follows:

In said conference, they [the defense attorneys] made a settlement offer on the basis on (sic) of the Court's prospective ruling on their [defense] motion for summary judgment. Counsel Gaztambide stated that the Court would be dismissing the case as to five (5) of the plaintiffs, was yet unsure of his decision as to three (3) of the plaintiffs, and would deny the motion for summary judgment as to the remaining six (6) plaintiffs.

Defense counsel then reviewed an earlier letter containing settlement offers for each plaintiff. The statement continues: "Next to the name of each plaintiff, counsel Gaztambide made a downward slant for all those cases which the Court would be dismissing ... an upward slant next to the names of the cases the Court was yet unsure of ... and a circle next to the names of those cases [in which] the Court would deny the motion for summary judgment...."

Del Valle objected that defense counsel had information about "a prospective dismissal" of certain of the cases. All three lawyers returned to the judge who continued to urge settlement of the case. When defense counsel Plaza said that Del Valle had an ethical obligation to report the settlement offers to his clients, Del Valle said that his clients were in court "because they believed in the Constitution and their right to be made whole."

According to Del Valle's statement, the district judge then intervened "to express that the undersigned should 'forget the Constitution,' because several of my clients were 'political sweet potatoes' that cared more about having some money in their pockets than about their Constitutional rights." The judge then proposed a settlement figure of approximately $200,000 that "counsel agreed to recommend to their clients." Del Valle did meet with his clients, but the upshot was a motion by Del Valle, accompanied by the statement just described, requesting the district judge to recuse himself pursuant to 28 U.S.C. §§ 144, 455(a) and (b).

The motion for recusal was filed on June 17, 1996. When no action had been taken on the motion after eight months, plaintiffs, on February 26, 1997, filed a motion requesting a ruling. When again there was no response, plaintiffs on April 19, 1997, filed a petition for writ of mandamus in this court. Ten days later, on April 29, 1997, the district court issued an opinion and order denying the motion for recusal.

In the 28-page opinion and order, the district court concluded that disqualification was not required under either section 144 or section 455. The district judge stated that he had, "as is customary, discussed separately with each party's counsel the perceived strengths and weaknesses of the case...." The opinion continued: "The undersigned did not tell either party definitively what his decision would be--he merely gave both parties his preliminary impression of the possibilities for success as to each claim."

This decision mooted plaintiffs' request to us for an order directing the district judge to rule. But the mandamus petition also requested that this court order the district judge to recuse himself. Accordingly, on May 23, 1997, this court asked the parties to file memoranda addressing the merits of the recusal claims and the overhanging question whether review by mandamus was warranted. Del Valle complied; defense counsel relied largely on the district judge's decision.

On June 6, 1997, the district court issued an opinion and partial judgment disposing of the pending motions for summary judgment filed by the defendants. The court dismissed certain claims and, as to others, scheduled an evidentiary hearing for later in June and a trial date in August 1997. At the request of plaintiffs, this court then granted a stay of further proceedings in the district court.

II. DISCUSSION

In this case, there is no final judgment appealable as of right. Ordinarily, a district judge's refusal to recuse is reviewable only on appeal of a final judgment; the collateral order doctrine does not apply. Nevertheless, in unusual situations, interim review of such a refusal is available through writ of mandamus. See In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1545, 134 L.Ed.2d 648 (1996) (collecting cases).

The usual first requirement for mandamus in a recusal matter is that the party seeking the writ show a "clear and indisputable" entitlement to relief. In re United States, 666 F.2d 690, 695 (1st Cir.1981); see 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3553, at 661 (2d ed.1984). Interlocutory review, after all, interferes with the ordinary processes of trial and appeal; and absent interlocutory review, many issues wash out along the way. But over the years, appeals courts have held that given a clear error by the district judge in refusing to recuse, a stronger argument exists for immediate review by mandamus.

Mandamus is a discretionary writ and, even where the merits clearly favor the petitioner, relief may be withheld for lack of irreparable injury or based on a balance of equities. These are malleable concepts and often matters of degree. Some opinions suggest that a clear entitlement to recusal may itself warrant immediate relief, absent an equitable bar, because public confidence is enhanced where a clearly disqualified judge is removed swiftly. See, e.g., In re United States, 666 F.2d at 694.

In all events, in recusal cases, mandamus is almost always withheld--we do not say always--unless the petitioner demonstrates that it is "clearly" entitled to relief. See Cargill, 66 F.3d at 1262. Here, the plaintiffs have invoked two separate bases for disqualification, sections 144 and 455, whose procedural incidents differ widely. We consider them separately and in order.

Section 144. This provision begins with a core one-sentence paragraph:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

A second paragraph sets forth a timeliness requirement (not here in dispute), provides that the party can only file one such affidavit in any case, and requires a certificate of counsel of record that the affidavit is made in good faith.

Section 144 is unusual because it requires that the district judge accept the affidavit as true even though it may contain averments that are false and may be known to be so to the...